Com. v. Colon, H. ( 2019 )

J-S81045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HECTOR DAVID COLON :
:
Appellant : No. 1247 MDA 2018
Appeal from the PCRA Order Entered July 3, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002458-2009,
CP-22-CR-0002461-2009, CP-22-CR-0002462-2009
BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 04, 2019
Appellant, Hector David Colon, appeals from the order entered in the
Court of Common Pleas of Dauphin County denying his first petition filed under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, following
an evidentiary hearing. Based on our Supreme Court’s recent decision in
Commonwealth v. Walker, ___ Pa. ___, 185 A.3d 969 (2018), we are
constrained to quash the appeal.
Beginning in the late 1990’s, over the course of several years, Appellant
regularly sexually assaulted three young girls: A.M., B.S., and S.C. The
Commonwealth filed numerous charges at three separate lower court docket
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* Former Justice specially assigned to the Superior Court.
J-S81045-18
numbers,1 and the three cases proceeded to a joint jury trial, at which
Appellant was convicted of all offenses. On November 7, 2011, the trial court
sentenced Appellant to an aggregate of 3 to 6 years in prison for the crimes
against A.M. (docket 0002458-2009), an aggregate of 4 to 8 years in prison
for the crimes against B.S. (docket 0002461-2009), and an aggregate of 21
to 47 years in prison for the crimes against S.C. (docket 0002462-2009).2
Appellant filed a timely direct appeal, and we affirmed on August 14, 2013.
On June 18, 2014, Appellant filed a timely pro se PCRA petition at all
three docket numbers, and the PCRA court appointed counsel, who filed an
amended PCRA petition at all three docket numbers. Therein, Appellant raised
claims of ineffective assistance of trial counsel, specifically averring that trial
counsel was ineffective for failing to call witnesses, failing to request a bill of
particulars, and not presenting an alibi defense. Following a PCRA hearing,
the PCRA court filed an opinion on July 3, 2018, which denied PCRA relief on
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1 As to A.M. (docket 0002458-2009), Appellant was charged with indecent
assault, unlawful contact with a minor, and corruption of minors. As to B.S.
(docket 0002461-2009), Appellant was charged with one count of criminal
attempt, two counts of indecent assault-complainant less than 13 years, two
counts of corruption of minors, and two counts of unlawful contact with a
minor. As to S.C. (docket 0002462-2009), Appellant was charged with rape
of a child, rape (victim less than 13 years old), indecent assault, unlawful
contact with a minor, and corruption of minors.
2The confinement for docket 0002461-2009 was imposed concurrently to the
confinement for docket 0002458-2009; however, the confinement for docket
0002461-2009 was imposed consecutively to the confinement for docket
0002462-2009.
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all three docket numbers. On July 27, 2018, counsel filed on behalf of
Appellant a single timely notice of appeal bearing all three lower court docket
numbers.3
In his appellate brief, Appellant sets forth the following issue:
1. Whether the trial court erred in dismissing [Appellant’s]
PCRA petition when trial counsel was ineffective in failing to (a)
call witnesses, (b) request a bill of particulars, and (c) present an
alibi defense and whether Appellant is due relief under
[Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)]?
Appellant’s Brief at 4.
At the outset, we must address the fact that Appellant filed a single
notice of appeal with issues that relate to three different lower court docket
numbers.4 The Official Note to Pa.R.A.P. 341 provides, in relevant part:
Where, however, one or more orders resolves issues arising on
more than one docket or relating to more than one judgment,
separate notices of appeal must be filed. Commonwealth v.
C.M.K., 932 A.2d 111, 113 & n.3 (Pa.Super. 2007) (quashing
appeal taken by single notice of appeal from order on remand for
consideration under Pa.R.Crim.P. 607 of two persons’ judgments
of sentence).
Pa.R.A.P. 341, Official Note.
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3 The lower court’s certified docket entries did not initially reflect that the PCRA
court denied PCRA relief in its opinion filed on July 3, 2018. Accordingly, this
Court issued a rule to show cause as to why the appeal should not be quashed,
and in response, Appellant’s counsel explained the PCRA court denied relief in
its opinion. This Court requested the trial court correct the certified docket
entries, and, thus, the lower court corrected the docket to reflect the denial
of PCRA relief on July 3, 2018.
4 The argument portion of Appellant’s brief reveals that he is presenting this
issue as to all three lower court docket numbers.
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Until recently, we recognize that it was common practice for courts of
this Commonwealth to allow appeals to proceed, even if they failed to conform
with Pa.R.A.P. 341. See In the Interest of P.S., 158 A.3d 643 (Pa.Super.
2017). However, on June 1, 2018, our Supreme Court, in Walker, supra,
held that this practice violates Pa.R.A.P. 341. Specifically, our Supreme Court
held that “where a single order resolves issues arising on more than one
docket, separate notices of appeal must be filed for each case.” Walker, 185
A.3d at 971. The Court concluded that “[t]he Official Note to Rule 341
provides a bright-line mandatory instruction to practitioners to file separate
notices of appeal. . . .The failure to do so requires the appellate court to quash
the appeal.” Id. at 976-77. See Commonwealth v. Luciani, ___ A.3d ___,
2018 WL 6729854 (Pa.Super. filed 12/24/18) (recognizing that, despite the
fact charges filed at two separate lower court docket numbers are joined for
trial, under Walker, supra, appellants are required to file separate notices of
appeal). The Supreme Court provided that its decision would apply
prospectively to appeals filed after June 1, 2018, the date Walker was filed.
In the case sub judice, Appellant’s notice of appeal was filed on July 27,
2018. Although the PCRA court addressed the merits of Appellant’s collateral
issues in one opinion, under current precedent, our Supreme Court mandates
that Appellant was to file a separate notice of appeal for each lower court
docket number. Consequently, since Appellant’s notice of appeal, which arises
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from three lower court docket numbers, was filed after Walker, we are
constrained to quash the appeal.
Appeal quashed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/04/2019
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